The ICO Unfit for Purpose & Failing the FoIA?

The ICO’s seeming lack of Interest in FoIA

My dealings have principally been about the Public Authority, National Highways, formerly Highways England. I believe National Highways are so compromised as to be ineffective, that the tails (contractors) wag the dog.

1. The FoIA is no longer fit for purpose

In a 2019 report to Parliament ‘Outsourcing Oversight[3]’, the Information Commissioner stated:

‘the laws are no longer fit for purpose’ and urged that contractors should be brought under FOIA.

This is the very situation I have encountered since 2014; the Authority has agreements with sub-contractors and uses this to place matters out of reach.

The ICO was commenting upon the very area of the legislation about which I had raised concerns; the utilisation of contractors who, not Public Authorities’, were not captured by the Act and effectively diluted it. Despite my issues highlighting he problem, the ICO has not engaged and appears to desire no change to the legislation. The situation appears to be akin to ‘20 working days for an Internal Review (IR)’ (below); not captured by the Act, no work to do.

Why is the ICO raising this again now, 11/2021, as they are set to depart their office, why has Elizabeth Denham failed to address the issue?

2. Failure to Investigate

The ICO has repeatedly failed to investigate my allegations – s77. The ICO stated they ‘get evidence from eyewitnesses or gather evidence from searches which indicates that the material was held’.
They did not; what they say and what they do are different.

3. s.77 New Evidence / Continuing Offence

On the one hand the ICO required evidence of rates existing to return to the s77 allegation, on the other they criticised me for sending this. I am being provided contradictory responses by the ICO about s77. Why?
I evdeinced the existence of rates held by the Authority, the ICO placed no weight in my evidence, writing and accepted the Authority’s uncorroborated comment.
4. Date of s 77 Offence

I remain without a clear understanding of the date from when a s77 offence commences (the ICO has 6 months within which to issue a summons) and how it is a ‘continuing’ offence. It appears this description is used as and when it suits the ICO to confuse.
5. s.77 – why bother?

The ICO considers section 77, the withholding of information, ‘empty threat legislation’ which appears to suit the ICO’s desire to avoid action;
The ICO has failed to address the issues associated with s77 requirements; the onerous requirement to obtain a summons within 6 months of the offence occurring. It appears the ICO believes the legislators did not wish Authorities to be prosecuted.
The legislation requires amendment, seemingly understood by the ICO, this has not occurred.
The ICO’s approach to s77 appears to be ‘we cannot prove it, so why bother?’
6. S77 ICO ‘team’

ICO employees are apparently employed only to investigate offences. However, the ICO has only twice in 20 years prosecuted, successfully once! A waste of resources – presumably only utilised to tell people why the ICO will do nothing; to find ways to avoid?
7. ICO favours an Authority

The ICO claims to issue Decision Notices (DN) on the ‘balance of probabilities’
However, with regard to seeking information an Authority states they do not possess, the Authority need only state ‘not held’ and in the absence of irrefutable evidence (a smoking gun) the information is held, the ICO will support the Authority, find against the complaint.
8. ‘Confession’ is Not a Standard of Proof

A complainant’s evidence is worth less, the ICO does not consider standards of proof, they want a definite, the absolute. They mislead when speaking of standards of proof. Circumstantial evidence is insufficient, logic dismissed, enquiries are not pursued – for fear of discovering the information probably is held … in which case, the ICO is presented a problem; how do you force an Authority to release something it will not admit to holding?
The ICO sought to deter my complaint, to baffle me with accurate sounding explanations about the ‘standard of proof’ required; the ‘very, very high’ standard or the ‘very, very high threshold’ and it is a ‘high bar’. The fact is there are two standards of proof:
• balance of probabilities
• beyond reasonable doubt
The ICO attempted to dissuade me by citing an unattainable third standard. They made up a level of proof to bamboozle, deter. The ‘unproveable’ approach promotes unwillingness to act.
The ICO requires a confession – not a standard of proof; there is nothing to prove. The ICO’s approach is one of simplicity, avoiding investigation.
9. Authority Response Contradictions used against the requestor
The ICO seeks ways in which to undermine my position, attack my credibility citing, for example, MY history with HE. However, mine is a reaction to the conduct of HE. The ICO ignores that:
• To 12/2018, HE claimed on 175 occasions that DCP rates were HELD,
• 01/2019 HE volt-faced, DCP rates were NOT held.
• Late 2020, the information IS HELD; HE has now produced it
My stance has been consistent, evidenced; rates exist. It is HE’s history with me that warrants attention. The conduct reflects poorly on HE not me. The ICO’s prejudicial approach toward me is obvious.
It does not appear the ICO, a Public Authority, with to act against a well-resourced Public Authority (National Highways) who throw public funds at an issue
10. ICO’s Lack of Respect for Tribunal Decisions

When citing ‘my’ history against me, when seeking to highlight my numerous requests/reviews and annotations (WDTK) the ICO includes pre 12/2018 matters – yet a Tribunal (2018/0088) had already addressed these, found me not vexatious.

Why does the ICO continue too raise these and not consider the conduct of the Authority?

11. ICO Failure to Return to Matters

The ICO continues to cite pre-08/2020 (when ‘not held’ rates were disclosed) decisions that went against me, both their DN’s and Tribunal findings. Yet these supported the Authority’s ‘not held’ stance – a position that has been provided wrong; these prior DN’s and Tribunal judgements were based on flawed/false evidence.

The ICO has repeatedly failed to answer my question; what is their intention with regard to these matters?
12. DN’s – an end of the matter

Having issued a DN, what if a Tribunal should overturn the decision, what is required of the ICO?
Seemingly nothing!

If a Tribunal decided that information is to be released, overturns the ICO’;s DN, who is to enforce the finding? The ICO has argued ‘not us’ and it appears this is the case; Information Commissioner v Moss and the Royal Borough of Kingston upon Thames: [2020] UKUT 174 (AAC); On appeal, the Upper Tribunal decided that: (a) the Commissioner had the power to appeal against the tribunal’s decision; and (b) the tribunal had jurisdiction to enforce its substituted decision notice.

Where is the ICO’s incentive to get it right?
13. DPA vs. FoIA
The ICO’s approach appears to differ between the legislation they oversee,
• DPA – go after private companies/individuals and make headlines
• FoIA – avoid pursing Public Authorities.
14. Vexatious Authority
The FoIA legislation is not balanced; a requestor can be deemed vexatious, an Authority not.
There is no deterrent to an Authority, no merit in the ICO taking issue with an Authority, they can act as they see fit (this also applies to undertaking ‘Reviews’ – see below).
A requestor is likely to have their history of requests used against them. Conversely an Authority’s conduct is ignored – for example, the Authority’s:
• 175 ‘false’ (but not false) ‘held responses
• ‘not held’ responses
• acknowledging rates exist
15. ICO’s lack of Resources/Interest

It appears the ICO takes the line of least resistance. A requestor is likely an individual whose day-job is not managing a request; they may only make the odd request and not understand the process. In turn, they may beleive that the ICO’s Decision Notices are impartial, considered and appropriate findings.
The ICO lacks the resources to look at the ‘in-depth level I am presenting a lot of the information’ it is “not the ICO’s remit” to look at a complaint in depth!
16. ‘Complicated’

What is ‘complicated’ for the ICO?
What pushes an appeal about an Authority decision over the ICO’s ‘formulaic’ process and into the ‘complicated category’ such that the ICO are unable or unwilling to consider such matters and rely upon Tribunals?
It is evident the ICO only has a process for ‘uncomplicated’.
Matters falling to ‘complicated’, the ICO is effectively acknowledging they cannot address them, have no process so they make a decision and force the requestor to Tribunal. DN’s do not convey this.
How is a requestor to know if the ICO’s stance is one of ‘too complicated’, unable to consider, find against the requestor? On their backfoot, believing they have received fair consideration, how many requestors are found against for ‘no good reason’?
What weight does a Tribunal attach to an ICO DN?
17. Do not read

I one instance it was acknowledged the ICO did not even read my information; it was too long. Is this the ‘complication’?
The DN made no reference to this conduct.
18. Decision Notices (DN)

DN’s are ‘legal documents’ yet they are issued without due consideration of the evidence and without forthright admissions by the ICO, of the superficial, ‘formulaic’ consideration.

The ICO must find for someone, cannot sit on the offence yet the documents mislead; fail to carry a caveat that they are not necessarily based on a consideration of all the evidence.

It appears the ICO cannot be entrusted with such decision making and should be able to admit ‘the issue is too complicated’ and find for no one.

19. ICO & Record Keeping

Some information contained within a DN may be gleaned from conversations between the ICO and an Authority in respect of which the ICO maintains no record. The ICO has no policy about note-keeping; it is up to the case handler i.e. there are effectively ‘off the record’ conversations.

What impression does this create?

The ICO does not record their phone conversations.

This approach to evidence, to be conveyed in ‘legal documents’, appears unprofessional, slapdash.
20. Information Forming the Basis of a DN

DN’s appear based upon what the ICO receives from a requestor which is then put to the Authority. There is no going back and forward, a DN is compiled based upon the Authority’s ‘defence’ of their position.

The ICO will likely write to the Authority but what will be supplied in return?

Why is a DN not accompanied by the supporting evidence?

Requesting correspondence relied on in order to make a decision (IC-49160-H5B1), I was informed ‘As you know, we do not routinely disclose the contents of our case files unless this is requested by the complainant, and if it is, it is forwarded to our Information Access Team so this can be processed in accordance with the ICO’s own obligations under FOIA’.

My requests are obstructed, refused, s14 (vexatious cited) where I appeal.

21. Appeal Against the ICO’s DN and Info’ is withheld

To Appeal a DN, the requestor must present the matter to the GRC within 28 days.

If the requestor wishes to view the ICO’s records, the basis of their DN, they are subject to FoIA which provides 20 working days (28 days – if no holidays occur within the period) to be provided the information.

It is evident, the Appeal would need to be made without the benefit of the ICO’s records.

If a requestor should appeal and seek the ICO’s records, engaging FoIA (the ICO’s policy), the request may be refused as a ‘duplication’ i.e. the information will be released in the course of the appeal/Tribunal process … which could take many months!

I have asked the ICO why I am not permitted to have information released in accordance with the FoIA just because I appeal. I understand that the information should/may be provided as part of the appeal process, but I have been clear:

• An FoIA release is to the world, Tribunal disclosure is not.
o I may wish to use the information (beforehand)
o I cannot use Tribunal information without consent (or until proceedings are concluded)
o I also wish to review and potentially use the information now
• Why should I have to wait what maybe a year for the info’
• I am busy, FoIA is not my work, I am not paid for this activity. I wish the information whilst events are fresh in my mind.
22. Authority Explanations Accepted
The ICO appears to latch onto at any potentially plausible excuse the Authority presents; smoke-and-mirrors or red-herrings.

When advised by the Authority that I ‘misunderstood the situation’ (and therefore, there were no rates), the ICO accepted this seemingly without thought accepting the Authority’s non-sensical statement. Tribunals subsequently regurgitated the ICO position suggesting they were swayed by the DN, influenced.

Clearly, I fully understood the situation and the Authority was aware of this!

I was consistent, resolute and ultimately the information I knew to be held was disclosed. I understood rates existed, I understood the process and that there must be rates. I evdeinced this, but the ICO ignored my corroboration.
23. No Compelling Case

I sought rates. I evidenced their existence but the ICO was having none of stating

‘The Commissioner has viewed the Complainant’s correspondence, not identified any arguments from the Complainant that make a compelling case for the Authority holding the disputed Information’ [FS50741018 para 30].

I submitted multiple arguments all of which have been proved not simply to be ‘compelling’ but fact!

There are none so blind as those who will not see.

My evidence was not just persuasive, convincing, it was accurate describing the situation the Authority rejected, argued against. My evidence supported the existence of rates and my perseverance uncovered them.

Yet in the volume of information I presented, the ICO found no argument that supported my position?
24. 20 working days for an Internal Review (IR)

The FoIA ‘guidance’ is that an Authority must respond to an IR request within 20 working days. The FoIA does NOT state that an Authority must respond to a request for IR within 20 working days, it is not a statutory requirement.

The ICO has failed to resolve this wrinkle in the legislation – it is addressed in the Environmental FoIA

Possibly this no statutory requirement situation is Intentional; another example of the ICO not wishing for there to exist legislation as this would give rise to complaints and in turn, a need to keep records, act upon them and address complaints?
25. Failing to Monitor Authorities

It has come to my notice that the ICO has not monitored the performance of Public Authorities since September 2017.
26/10/2021 ‘To be clear, you are doing no information freedom monitoring of any authorities and can’t say when it will start?’

However, 30/10/2021 I received a letter from the ICO which contains the following:

We will use intelligence we gather from individual cases to inform our insight and compliance function. This will help us meet the goal in our ‘Openness by Design’ strategy to improve standards of accountability, openness and transparency in a digital age. We aim to increase the impact of FOIA and EIR enforcement activity by targeting public authorities’ systemic non-compliance. This is consistent with the approaches set out in our Regulatory Action Policy.’

It does not appear the ICO is complying with their Regulatory Action Policy.
26. It is how you look that matters

The ICO’s appears averse to keep figures but about performance indicators; have little to do, do little, be seen to do nothing wrong.

Confessions or ‘dead certainties’ results in positive ‘results’ therefore these are progressed.

DN’s for complicated matters go against a requestor … they are less likely to argue, appeal.
27. Lack of a complaints process

The ICO’s complaints process appears to be simplistic:

• A complaint made against a case ‘worker’ is submitted utilising the ICO’s reference.
• The complaint is received by the case worker complained about.
• The case worker subject of the complaint has, on occasions, responded to me that the complaint will not progress!
• I escalate the issue, the complaint is dismissed by the manager

The ICO have a simple get-out for complaints; they state the complaint is about the DN. They only consider ‘service’ related complaints. Lumping everything under ‘the decision’ means they are required to do nothing.

There is no appeal, save to the Parliamentary Ombudsman.
28. Putting Mistakes Right

I have made multiple FoIA requests to acquire rates for repair works.

• 2013 to 08/2108, the Authority says I made 57 requests/reviews. They replied, ‘HELD but ‘sensitive’.
o Apparently the Authority received many more requests/reviews – I am said to have annotated them on the WDTK web site i.e. these are just the one I know about
• 12/2018, a Tribunal found for me; I expected to receive the rates
• 01/2019, the Authority said no rates in any ASC (contract)

From 01/2019, I had to approach matters differently. I expected the ICO to be incredulous of the Authority after 175 requests reviews (57 +118), I anticipated the ICO supporting me. Instead, they too changed their approach and having agreed rates were ‘sensitive’ now accepted they did not exist!

I presented request to the Authority, they said ‘not held’, the ICO accepted this and DN’s undermined my stance. Matters that progressed to Tribunals saw the stance of the ICO and Authority supported. I was found against and came in for criticism.

But rates do exist. In Area 9 they were held by the Authority since 2015. In Area 10, at the very least they are held by the contractor (BBMM) but must surely have bene known to the Authority as the contract concluded 04/2019 with BBMM being paid about £1/4million as they had under-priced.

I have, on numerous occasions, asked the ICO what their intentions are to the DN’s and Tribunal findings that support ‘not held’ in light of the mor recent developments; the rates exist, are held.

To date the ICO is silent on the subject.

P. Swift